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Trudeau’s hastily pulled together news conference caused more than a few journalists to suggest he was trying to distance himself from the Senate scandal consuming the Harper government.

Was Trudeau trying to head off the pending report by the Auditor General on Senate expenses, expected to reveal spending abuses by both Liberal and Conservative senators?

Such speculation makes for fine fun but while Trudeau’s spin masters tried to talk up his announcement as a “bold move,” as pundits openly questioned his motivations, there was far too little discussion of what Trudeau had actually proposed.

Trudeau promised not only to fire his entire Senate caucus, but to reform the entire process by which senators are selected. He proposed that there be a “non-partisan public process for appointing and confirming senators.” He said the prime minister should no longer hold the exclusive power to select members of the Upper Chamber, saying that “senators themselves are discredited by [an] antiquated convention that sees senators appointed by one person, and one person only.”

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Many would argue that even these reforms would leave the fundamental problem with the Senate unchanged — that is, unelected, unaccountable senators who can still engage in partisan behaviour. But Trudeau insisted this was an easy to achieve alternative to other reform options like elections or abolition.

Had Trudeau bothered to read up on the Senate reform reference case before the Supreme Court before making his own proposal, he would have discovered that many of the same arguments being made in that case applied very much to the reforms he was proposing.

Indeed, on April 25, the
Supreme Court of Canada ruled
that any change to “the method of selecting senators” requires a constitutional amendment. The court went further, saying this would “include more than the formal appointment of senators,” but also “the entire process by which senators are ‘selected.’” The eight justices spoke even more specifically to what Trudeau had proposed when they said the prime minister could not be constrained by a list of candidates from which he would “be expected to choose” when making appointments.

In just two paragraphs, the Supreme Court made absolutely clear that any binding, non-partisan process for selecting senators, as Justin Trudeau had suggested, would require constitutional change. Within days, Trudeau’s handlers were talking about a very different type of proposal, one they called “less formal.”

Trudeau is ultimately left with a mutually exclusive choice: Either his proposed reforms would constrain the prime minister’s selection of senators, in which case a constitutional amendment is required, or his proposal amounts to nothing more than a promise that — if he ever manages to become Prime Minister — he will be a good boy and follow better advice on Senate appointments than his predecessors. Without any binding impact on the prime minister, such an appointment process would mirror what is already in place, along with an added promise to ignore the partisan affiliation of appointees. Such a promise is not a reform, but an ephemeral wish that could easily vanish at the first change of heart.

Canadians will have to wait for at least two (probably three) general elections before half of the current Senate would be replaced. The youngest senator is not due to retire before 2049. Any hope to truly change the partisan nature of the current Senate would rely on political naiveté. Are we to believe that Justin Trudeau’s new-found remedy to the ills of the Senate would convince the prime ministers of the next three decades to also be good boys and girls and follow his example?

With his retreat from any meaningful plan to reform the Senate, Trudeau has returned to his role as the champion of the status quo Senate — unelected, unaccountable and undemocratic.

As we’ve seen with the likes of Mike Duffy, Pamela Wallin and Patrick Brazeau, when officials are accountable to no one abuses are bound to happen. Now that we know that the only meaningful way to change the method by which we choose senators is through a constitutional amendment, then while we are at it why not reconsider the usefulness of this antiquated institution altogether?

Hugo Cyr
is professor of Constitutional Law at the Faculté de science politique et de droit, Université du Québec à Montréal. He was an advisor to then NDP leader Jack Layton in 2011.

Clarification - May 12, 2014:
This article was edited from a previous version that omitted reference to Hugo Cyr's affiliation with NDP leader Jack Layton in 2011.

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